In re Patent Application of: McCueet al
`Serial No.: 13/588,084
`Filed: 08/17/2012
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`REMARKS
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`Claims 46-67 were pending. Claim 64 has been cancelled. New claim 68 has been
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`added.
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`Claim 53 has been rejected under 35 USC 112, second paragraph. Claim 53 has been
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`amended to removethe term “‘at arbitrary time intervals”, and thus is believed to conform with
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`35 USC 112. No new matter has been added.
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`Claims 46 and 55 have been rejected under 35 USC 103(a) as being unpatentable over
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`Daoudet al. (US 7,984,147), in view of Zuniga (US 2005/0245243), in view of Hunter et al. (US
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`7,242,809), and further in view of Griffin (US 2007/0124331). This rejection is respectfully
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`traversed.
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`In particular, it is respectfully submitted that Daoudet al. do not teach computer readable
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`code, which when executed by a computer, causes said computer to send a request to a network-
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`based server, the request including a unique identifier for identifying an audio stream, and to
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`load a list of library servers receivedfrom the network-basedserver, the list of library servers
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`determined in dependence uponthe uniqueidentifier, as defined in claim 46.
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`Daoudetal. teach program code for selecting a requested level of service for a
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`transaction 200 and program codefor assigning the requested level of service. Referring to
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`column 8, lines 31-50, Daoudet al. teach that the transaction 200 is received at a load balancer
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`300, which reads the requested level of service and selects a server (e.g., 512) based on a server
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`index 600. Referring to column 6, lines 22-50, the server index is a multi-dimensional array
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`stored in memory accessible by the load balancer, and is used to determine the server in the
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`server pool that can best provide the requested level of service. The server pool is managed by
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`the load balancer 300.
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`

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`In re Patent Application of: McCueet al
`Serial No.: 13/588,084
`Filed: 08/17/2012
`
`Daoudet al. do not teach computer readable code, which when executed by a computer,
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`causes said computer to send a request to a network-based server andto loada list oflibrary
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`servers receivedfrom the network-based server.
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`\n fact, since the server index taught by Daoud
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`et al. is stored in memory accessible by the load balancer 300, and appears to be managed by the
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`load balancer 300, it is respectfully submitted that the program code of the load balancer 300
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`already has access to the server index and thus does not send a request to a network-based server
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`and load a list of library servers receivedfrom the network-based server, as defined in claim 46
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`of the instant application. For example, it is respectfully submitted that the load balancer
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`software cannotloada list of library servers received from a network-based server because the
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`load balancer manages/creates the server pool/server index. In addition, it is respectfully
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`submitted that one of ordinary skill in the art would never interpret the memory accessible by the
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`load balancer 300 to be a network-based server, since at column 7, lines 22-30 Daoudetal.
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`define a server as any computer or device that managesresources(e.g., which memory alone
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`cannot do). It is further submitted that the one of ordinary skill in the art would neverinterpret
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`the program code for selecting a requested level of service for a transaction 200 and program
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`code for assigning the requested level of service to be computer readable code, which when
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`executed by a computer, causes said computer to send a request to a network-based server, and
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`to loadalist of library servers receivedfrom the network-based server. For example, referring to
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`column6, lines 45-55, only the load balancer accesses the server index (i.e., the program code
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`for assigning the requested level of service never interacts with the server index).
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`Notably, providing computer readable code, which when executed by a computer, causes
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`said computer to send a request to a network-based server and to loada list oflibrary servers
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`receivedfrom the network-based server, provides client-based performance management. As
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`discussed in paragraphs [65]-[67] of the instant application, client-based performance
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`managementis an important factor in ensuring the integrity of the audio stream available to the
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`user. Advantageously, since the serverstatistics are created and maintainedin the client only,
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`the client software selects the server using performancedata that is specific to the client. For
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`example, as discussed in paragraph [67], this client-based performance management allows the
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`time of operations such as logging in, getting the file, and/or getting the file size to be used to
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`select the server. More specifically, the entire time for the transaction (e.g., from the original
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`In re Patent Application of: McCueet al
`Serial No.: 13/588,084
`Filed: 08/17/2012
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`request to a response from the request) is used to select the server. Accordingly,this client-based
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`performance managementis able to balance network and server loads on the basis of
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`performance defined by the client. In contrast, Daoudet al. only teaches resource managing and
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`does not provide client-based performance management wherein the transaction is
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`evaluated/monitored from the client side(i.e., the speed of the transaction between the load
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`balancer and the origin of the transaction is ignored).
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`Since Daoudet al. do not teach computer readable code, which when executed by a
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`computer, causes said computer to send a request to a network-based server, the request
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`including a uniqueidentifier for identifying an audio stream, andto loadalist of library servers
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`received from the network-basedserver,the list of library servers determined in dependence
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`upon the unique identifier, as defined in claim 46, it is respectfully submitted that the
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`combination provided by the cited references does not teach the combination of elements found
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`in claim 46 and that a prima facie case of obviousnesshas not been established. Accordingly,
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`claim 46 and claims 47-57, which depend therefrom, are believed to be patentable.
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`In addition,it is respectfully submitted that modifying the combination of Daoud, Zuniga,
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`and Hunter in view of Griffin does not provide the invention defined in claim 46, for the
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`following reasons.
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`First, as discussed supra, Daoudet al. teach a first program code for selecting a requested
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`level of service for a transaction for assigning the requested level of service and a second
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`program code used bythe load balancer. It is respectfully submitted that the first and second
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`program codesare different codes and are provided on separate non-transitory computer readable
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`storage media. For example, as is well know to those of ordinary skill in the art, load balancing
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`is typically provided by dedicated software or hardware(e.g., a load balancing engine) thatis
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`disposed far from the origin of the transaction (e.g., is often coupled to a port where external
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`clients connect to access services). Further support that the first and second program codesare
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`provided on separate non-transitory computer readable storage media is found in Daoud at
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`column6, lines 45-50, wherein it is stated that the transaction is received by the load balancer,
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`and that the service tag is read using suitable program code. Sincethe first and second program
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`In re Patent Application of: McCueet al
`Serial No.: 13/588,084
`Filed: 08/17/2012
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`codes are provided on separate non-transitory computer readable storage media, it is respectfully
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`submitted that the cited combination cannot teach a non-transitory computer readable storage
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`medium including computer readable code, which when executed by a computer, causes said
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`computer to: send a request to a network-based server, load a list of library servers received
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`from the network-based server, and downloada first digital audio filefrom the plurality of
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`digital audio files for playback with a media player, as defined in claim 46. For example,if the
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`first program codefor selecting a requested level of service for the transaction is modified in
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`view of Griffin to downloada first digital audio file from the plurality of digital audiofiles for
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`playback with a media player, the combination will not provide program code usedto load a list
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`oflibrary servers(1.e., as discussed supra, the server index taught by Daoudis only accessible by
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`the load balancer). In contrast, if the second program code used by the load balancer is modified
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`in view of Griffin to downloada first digital audio file, the combination will not provide
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`computer readable code that causes said computer to send a request to a network-based server
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`and to loadalist of library servers receivedfrom the network-basedserver(e.g., as discussed
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`supra the load balancer does notreceive the list of library servers from a network-based server).
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`Furthermore,it is respectfully submitted that one of ordinary skill in the art would never modify
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`the second program code used by the load balancer to downloada first digital audio file because
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`the load balanceris used solely for managing the internet load (e.g., in a server farm) in a
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`transparent mannerand because it would be pointless for a load balancer to download an audio
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`file for playback with a media player. In fact, modifying the program codeof a load balancer to
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`download an audiofile for playback with a media player would slow downthe transaction,
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`whichis in direct contrast to the focus of Daoudetal. (e.g., to improve service using level of
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`service assigned).
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`Second, referring to paragraph [0020], Griffin teaches downloading and storing content
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`files, each of which has a bookmark associated therewith. It is respectfully, submitted that one
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`of ordinary still in the art would understand that each of these content files represents a single,
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`complete unit(1.e., that the contentfiles stored on the content server taught by Griffin are not
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`digital audio files including different segments of an audio stream). Accordingly,it is
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`respectfully submitted that one of ordinary skill in the art would never interpret Griffin to teach
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`“downloada first digital audio file from the plurality of digital audio files for playback with a
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`In re Patent Application of: McCueet al
`Serial No.: 13/588,084
`Filed: 08/17/2012
`
`media player, each digital audio file in the plurality of digital audio files including a different
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`segmentof the audio stream” as defined in claim 46 of the instant invention. It is further
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`submitted that one of ordinary skill in the art would not find it obvious to modify the teachings of
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`Daoud, Zuniga and Hunter in view of Griffin, because Griffin teaches away from providing “a
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`plurality of digital audio files for playback with a media player, each digital audio file in the
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`plurality of digital audio files including a different segment of the audio stream’, by specifying
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`that a separate bookmarkfile is created for each contentfile (e.g., see paragraph [0020]).
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`Accordingly, claim 46 and claims 47-57, which dependtherefrom, are believed to be patentable.
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`In addition, with specific regard to claim 55, it is respectfully submitted that the cited
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`combination doesnot teach “downloada first digital audio file from the plurality of digital audio
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`files for playback with a media player, each digital audiofile in the plurality of digital audio files
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`including a different segment of the audio stream” and “download a second other digital audio
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`file from a second library server for playback with the media player.” More specifically,it is
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`respectfully submitted that no combination ofthe cited references teaches downloading different
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`segments of an audio stream from different libraries.
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`With specific regard to claim 57, it is respectfully submitted that Arons does not teach
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`small digital audio files and thus cannot teach “wherein the computer determinesthefirst digital
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`audiofile for playback using a time offset external to the descriptorfile and the at least one of
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`the start time, end time, and play time of each digital audiofile in the plurality of digital audio
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`files.” For example, referring to section 3.9 on page 20 of the SpeechSkimmer document, Arons
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`teachesthat a single file is created that containsall of the segmentation data. In the samesection,
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`on page 21, it is specifically stated that audio data are read from the soundfile.
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`Applicant would like to thank the Examinerfor indicating that claim 64 would be
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`allowable if rewritten in independent form, includingall of the limitations of the base claim and
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`any intervening claims. The subject matter of claim 64 has been written in independent form as
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`amended claim 58. In addition, amended claim 58 corrects the phrase “resident with the
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`computer” to --resident within the computer--. Claim 64 has been cancelled. No new matter
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`In re Patent Application of: McCueet al
`Serial No.: 13/588,084
`Filed: 08/17/2012
`
`has been added. Accordingly, claim 58 and claims 59-63, which depend therefrom, are believed
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`to be patentable.
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`Claims 65 and 66 have been rejected under 35 USC 103(a) as being unpatentable over
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`Zuniga in view of Daoudet al. Claim 67 have been rejected under 35 USC 103(a) as being
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`unpatentable over Zuniga in view of Daoudetal. and in view of Thiagarajan et al (US
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`20030221194). These rejections are respectfully traversed.
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`First, it is respectfully submitted that Daoudet al. do not teach a size ofeach digital
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`audiofile in the plurality ofdigital audio files selected in dependence upon network throughput
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`rates, as stated on page 24 of the Office Action. In fact, referring to column 5, lines 33-36
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`Daoudet al. specify that “the requested level of service may also be based on characteristics or
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`parameters of the transaction 200 itself. For example, large processing requests can be assigned
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`to faster servers.” In other words, Daoudet al. teach the opposite of a size ofeach digital audio
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`file in the plurality ofdigital audio files selected in dependence upon network throughputrates,
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`by teachingthat the size of the transaction is innate and that larger processing requests will be
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`assigned to faster servers. In contrast, the instant application teachesthat selecting the size of
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`each small audiofile in dependence upon network throughput rates allows the small audiofile to
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`be transferred from the server to the client in a period of time that does not cause appreciable
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`consternation on behalfof the user (e.g., see paragraph [46] of the instant application).
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`Second,it is respectfully submitted one of ordinary skill in the art would notfind it
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`obvious to modify Zuniga and/or the other cited references to allow a size ofeach digital audio
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`file in the plurality ofdigital audio files to be selected in dependence upon network throughput
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`rates, and in particular to allow each digital audiofile in the plurality ofdigital audiofiles to be
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`downloadedand begin playing in less than about 5 seconds, as defined in claim 65.
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`In fact,it is
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`respectfully submitted that Zuniga teaches away from a size ofeach digital audio file in the
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`plurality ofdigital audio files selected in dependence upon network throughput rates and to
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`allow each digital audiofile in the plurality ofdigital audio files to be downloaded and begin
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`playing in less than about 5 seconds, by specifying at paragraph [0032] that the highest priority
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`audio content is delivered within the hour or within minutes. In addition, from paragraphs
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`In re Patent Application of: McCueet al
`Serial No.: 13/588,084
`Filed: 08/17/2012
`
`[0024] and [0038] it is clear that Zuniga believes that audio books have the lowest delivery
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`priority and that this type of content will be delivered over a period not exceeding a few days.
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`Accordingly, it is clear that one of ordinary skill in the art would never consider modifying
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`Zuniga such that a size ofeach digital audio file in the plurality ofdigital audio files is selected
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`in dependence upon network throughput rates to allow each digital audio file in the plurality of
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`digital audio files to be downloaded andbegin playing in less than about 5 seconds. In fact, it is
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`respectfully submitted that Zuniga teaches away from selecting a size of each digital audiofile in
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`the plurality ofdigital audio files to be selected to allow each digital audio file in the plurality of
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`digital audio files to be downloaded and begin playing in less than about 5 seconds by proposing
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`a different solution (e.g., delivery priority) to coordinating delivery of audio content.
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`Accordingly, claim 65 and claims 66-67, which dependtherefrom, are believed to be patentable.
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`In addition, with specific regard to claim 67, it is respectfully submitted that Thiagarajan
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`does not teach a non-transitory computer readable storage medium having computer code
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`configured to cause a computer to purge the downloadeddigital audio files in dependence upon
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`an amount of memory available. Referring to the abstract, paragraph [0003], and paragraph
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`[0055], Thiagarajan teaches streaming and a pause buffer. It is respectfully submitted that one of
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`ordinary skill in the art would neverinterpret the use of a pause buffer (e.g., configured as a
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`circular, or ring, buffer on the hard disk memory as described in paragraph [0003]) to be
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`equivalent to purging downloadeddigital audio files. For example, a circular, or ring, buffer
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`typically writes over data in volatile memory (RAM)and does not purge downloadedfiles. In
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`addition, it is respectfully submitted that one of ordinary skill in the art would neverinterpret the
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`data within the pause buffer to be equivalent to one or more downloadeddigital audio files. For
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`example, as is well knownin theart, the data that is being streamed needsto be processed for
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`rendering andis generally understood to be a frame or packet, rather than a digital audiofile.
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`In addition, claim 52 has been amendedto provide proper antecedence, claims 66 and 67
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`have been amendedfor consistency, and new claim 68 has been added. An example of support
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`for new claim 68 is found in claim 48. No new matter has been added. Since new claim 68
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`In re Patent Application of: McCueet al
`Serial No.: 13/588,084
`Filed: 08/17/2012
`
`depends from claim 46, whichis believed to be patentable, it is respectfully submitted that new
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`claim 68 is also patentable.
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`In view of the above comments, early and favorable reconsideration of the application is
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`respectfully requested.
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`Should any minor informalities need to be addressed, the Examiner is encouragedto
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`contact the undersigned attorney at the telephone numberlisted below.
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`The Commissioner is hereby authorized to charge any additional fees which may be
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`required, or credit any overpayment, to Deposit Account No: 50-2810.
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`Please associate this application with Customer No: 24949.
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`Respectfully submitted,
`
`NM Oude
`
`Neil Teitelbaum
`Regn No: 38,793
`
`Teitelbaum & MacLean
`Registered Patent Agents Limited
`280 Sunnyside Avenue
`Ottawa, Ontario
`Canada K1S OR8
`
`(613) 523 3784
`Tel:
`(613) 523 6799
`Fax:
`nt@patents.org
`Email:
`Website: www.patents org
`
`JMC/Imf
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